56 Kan. 744 | Kan. | 1896
The opinion of the court was delivered by
A motion is made to dismiss this proceeding because the sheriff and Herbert E. Ball, who were parties in the court below, are not made parties here. While they were proper parties in the district court, the sheriff had no interest in the litigation, but
The record presents squarely the question whether a sheriff's return as to matters concerning the truth or falsity of which he must know is conclusive on the parties to the suit. The sheriff in this case re/urned that he had served the summons on the defendants personally. He knew whether he had or had -not done so. It is true that in this case the evidence of the sheriff, under-sheriff and Brown all shows that no service was made by the sheriff himself, but that a copy was delivered to John J! Harbour by the under-sheriff, and whatever service was made on Frances J. Harbour was by Brown, concerning whose appointment as deputy prior to that time the evidence is conflicting. The sheriff has the right, however, to act through deputies, and is responsible for their doings to the same extent as for his own. While it would be better, perhaps, in all such cases to have the return show that the sheriff executed the process by the deputy, thus placing on record the exact truth, a return signed by the sheriff in his own name alone is undoubtedly sufficient where the service is actually made by a deputy. But the real question in the case is whether there may be any contradiction of the return outside of the record in the case itself. In England it has been the established law from a very early day that the return is conclusive as between the parties, and that the remedy of a party injured by a false return is by an action against the sheriff on his official bond, in which case alone the truth or falsity of the
officer is conclusive on the question of jurisdiction. It is not necessary now to inquire how far the court may go in setting aside a service when challenged in the suit in which it is made before judgment. In this case the only ground on which the judgment of the trial court can be maintained is that the court was without jurisdiction to render the judgment in the prior action. The following cases seem to support the doctrine that a want of jurisdiction may be shown at any time, and that the return of the sheriff is only prima facie evidence of the facts stated : Dunklin v. Wilson, 64 Ala. 162 ; Watson v. Watson, 6 Conn. 334 ; Quarles v. Hiern, 70 Miss. 891; Pollard v. Wegener, 13 Wis. 569. The courts of Georgia and New York, while recognizing the existence of the general rule, hold that under the practice prevailing in those states the officer’s return is not conclusive. (Dozier v. Lamb, 59 Ga. 461; Fer
“ The learned annotators of Smith’s Leading Cases, Piare and Wallace, (1 Sm. L. C. 842,) sum the matter up by saying : ‘ Whatever the rule may be where the record is silent, it would seem clearly and conclusively established by a weight of authority too great for opposition, unless on the ground of local and peculiar law, that no one can contradict that which the récord actually avers, and that a recital of notice or appearance or a return of service by the sheriff in th^record of a domestic court of general jurisdiction is absolutely conclusive, and cannot be disproved by extrinsic evidence.’ It is quite remarkable, however, that, notwithstanding the formidable array of authority in its favor, the courts of this state have never sustained this doctrine by any adjudication, but on the contrary the great weight of judicial opinion and the views of some of our most distinguished jurists are directly opposed to it.”
Counsel for defendants in error cite Bond v. Wilson, 8 Kan. 228 ; Starkweather v. Morgan, 15 id. 274; Chambers v. Bridge Manufactory, 16 id. 270 ; McNeill v. Edie, 24 id. 108, and Jones v. Marshall (Kan. App.
We do not approve the rule declared in the opinion in the case of Jones v. Marshall, that a sheriff’s return may be controverted as to matters falling within his
The judgment is reversed.
Not yet reported.